Legislature(2019 - 2020)BELTZ 105 (TSBldg)

03/01/2019 01:30 PM JUDICIARY

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Audio Topic
01:32:19 PM Start
01:32:45 PM SB12
02:35:48 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 34 PROBATION; PAROLE; SENTENCES; CREDITS TELECONFERENCED
Scheduled but Not Heard
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= SB 12 ASSAULT; SEX OFFENSES; SENTENCING CREDIT TELECONFERENCED
Heard & Held
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                           `1:32 p.m.                                                                                           
                         March 1, 2019                                                                                          
                             DRAFT                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Shelley Hughes, Chair                                                                                                   
Senator Mike Shower                                                                                                             
Senator Peter Micciche                                                                                                          
Senator Jesse Kiehl                                                                                                             
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Lora Reinbold, Vice Chair                                                                                               
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 12                                                                                       
"An Act  relating to  crime and  criminal procedure;  relating to                                                               
assault and  sexual assault; relating to  harassment; relating to                                                               
credit  toward a  sentence of  imprisonment for  time spent  in a                                                               
treatment program  or under electronic monitoring;  and providing                                                               
for an effective date."                                                                                                         
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
SENATE BILL NO. 34                                                                                                              
"An Act  relating to  probation; relating  to a  program allowing                                                               
probationers to  earn credits for  complying with  the conditions                                                               
of  probation;  relating  to   early  termination  of  probation;                                                               
relating to  parole; relating to  a program allowing  parolees to                                                               
earn  credits  for  complying  with  the  conditions  of  parole;                                                               
relating to early termination of  parole; relating to eligibility                                                               
for discretionary  parole; relating  to good time;  and providing                                                               
for an effective date."                                                                                                         
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB  12                                                                                                                  
SHORT TITLE: ASSAULT; SEX OFFENSES; SENTENCING CREDIT                                                                           
SPONSOR(s): SENATOR(s) MICCICHE                                                                                                 
                                                                                                                                
01/16/19       (S)       PREFILE RELEASED 1/7/19                                                                                
01/16/19       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/16/19       (S)       JUD, FIN                                                                                               
02/13/19       (S)       SPONSOR SUBSTITUTE INTRODUCED-REFERRALS                                                                
02/13/19       (S)       JUD, FIN                                                                                               
02/13/19       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/13/19       (S)       Heard & Held                                                                                           
02/13/19       (S)       MINUTE(JUD)                                                                                            
02/15/19       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/15/19       (S)       Scheduled but Not Heard                                                                                
02/18/19       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/18/19       (S)       Heard & Held                                                                                           
02/18/19       (S)       MINUTE(JUD)                                                                                            
02/22/19       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/22/19       (S)       CRIMES;SEX CRIMES;SENTENCING; PAROLE                                                                   
02/25/19       (S)       JUD WAIVED PUBLIC HEARING NOTICE,RULE                                                                  
                         23                                                                                                     
02/28/19       (S)       JUD AT 5:00 PM BELTZ 105 (TSBldg)                                                                      
02/28/19       (S)       -- Public Testimony <Time Limit May Be                                                                 
                         Set> --                                                                                                
03/01/19       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
BUDDY WHITT, Staff                                                                                                              
Senator Shelley Hughes                                                                                                          
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Presented the changes in the committee                                                                    
substitute for SSSB 12 on behalf of the Chair.                                                                                  
                                                                                                                                
REGINA LARGENT, Staff                                                                                                           
Senator Shelley Hughes                                                                                                          
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Presented the changes in the committee                                                                    
substitute for SSSB 12 on behalf of the Chair.                                                                                  
                                                                                                                                
JOHN SKIDMORE, Division Director                                                                                                
Criminal Division, Central Office                                                                                               
Department of Law                                                                                                               
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Testified and answered questions during the                                                               
discussion of SSSB 12.                                                                                                          
                                                                                                                                
JENNIFER WINKLEMAN, Director                                                                                                    
Division of Probation and Parole/Pretrial                                                                                       
Department  of Corrections                                                                                                      
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Answered questions during the  discussion of                                                             
SSSB 12.                                                                                                                        
                                                                                                                                
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
1:32:19 PM                                                                                                                    
CHAIR  SHELLEY  HUGHES  called   the  Senate  Judiciary  Standing                                                             
Committee meeting  to order at 1:32  p.m. Present at the  call to                                                               
order were Senators Kiehl, Micciche, Shower, and Chair Hughes.                                                                  
                                                                                                                                
         SB 12-ASSAULT; SEX OFFENSES; SENTENCING CREDIT                                                                     
                                                                                                                              
1:32:45 PM                                                                                                                    
CHAIR HUGHES announced that the  first order of business would be                                                               
SPONSOR SUBSTITUTE  FOR SENATE BILL  NO. 12, "An Act  relating to                                                               
crime  and criminal  procedure;  relating to  assault and  sexual                                                               
assault;  relating to  harassment;  relating to  credit toward  a                                                               
sentence of  imprisonment for time  spent in a  treatment program                                                               
or under  electronic monitoring;  and providing for  an effective                                                               
date."                                                                                                                          
                                                                                                                                
1:33:00 PM                                                                                                                    
CHAIR HUGHES reviewed the action previously taken on the bill.                                                                  
                                                                                                                                
1:33:43 PM                                                                                                                    
SENATOR   MICCICHE  moved   to  adopt   the  proposed   committee                                                               
substitute  (CS) to  SSSB 12,  work  order 31-LS0263\O,  Radford,                                                               
2/27/19, referred  to as  Version O, as  the working  document of                                                               
the committee.                                                                                                                  
                                                                                                                                
CHAIR HUGHES objected for discussion purposes.                                                                                  
                                                                                                                                
1:34:25 PM                                                                                                                    
REGINA  LARGENT,  Staff,  Senator Shelley  Hughes,  Alaska  State                                                               
Legislature,  Juneau,  on  behalf  of the  sponsor  of  SSSB  12,                                                               
introduced herself.                                                                                                             
                                                                                                                                
1:34:48 PM                                                                                                                    
BUDDY  WHITT,   Staff,  Senator  Shelley  Hughes,   Alaska  State                                                               
Legislature,  Juneau, on  behalf  of Chair  Hughes, reviewed  the                                                               
changes in  the proposed committee  substitute (CS) for  SSSB 12,                                                               
Version 0. He said that Section  1 is unchanged from the previous                                                               
version of the bill and recapped Sections 1-2:                                                                                  
                                                                                                                                
     Section  1:  Amends  AS 11.41.200(a),  assault  in  the                                                                    
     first degree,  to add  new subsection  5, which  adds a                                                                    
     person "knowingly causes  another to become unconscious                                                                    
     by  means  of  a   dangerous  instrument"  and  defines                                                                    
     "dangerous   instrument"   in   accordance   with   the                                                                    
     definition in AS  11.81.900. (Page 1, line 6    Page 2,                                                                    
     line 5)                                                                                                                    
                                                                                                                                
     Section  2: Adds  "knowingly causing  a victim  to come                                                                    
     into contact  with semen" to the  definition of "sexual                                                                    
     contact" in  AS 11.[8]1.900(b)(60). (Page 2,  lines 6                                                                      
     25)                                                                                                                        
                                                                                                                                
1:35:52 PM                                                                                                                    
MR. WHITT  explained that the  prior version of the  bill removed                                                               
the word "semen"  from the definition of the  crime of harassment                                                               
in the  first degree, so  the entire  Section 3 was  removed from                                                               
the bill. He reviewed Section 3, which relates to pretrial:                                                                     
                                                                                                                                
     Section  3: Repeals  AS 12.55.027(d)  and re-enacts  to                                                                    
     specify that  a court  may not  grant credit  against a                                                                    
     sentence   for  time   in  private   residence  or   on                                                                    
     electronic monitoring. (Page 2, Lines 26  28)                                                                              
                                                                                                                                
1:36:34 PM                                                                                                                    
MR.  WHITT  reviewed Section  4  of  the sectional  analysis  and                                                               
stated   that   this  provides   a   conforming   change  to   AS                                                               
12.55.027(e).                                                                                                                   
                                                                                                                                
     Section   4:   Amends   AS   12.55.027(e)   to   remove                                                                    
     "electronic  monitoring"  as  an  option  for  claiming                                                                    
     credit  toward a  sentence  of  imprisonment. (Page  2,                                                                    
     line 29  Page 3, line 7)                                                                                                   
                                                                                                                                
MR.  WHITT  explained  that  the  next  few  sections  relate  to                                                               
enhanced  sentencing  structure  and   Ms.  Largent  will  answer                                                               
questions on those sections.                                                                                                    
                                                                                                                                
1:37:15 PM                                                                                                                    
SENATOR KIEHL  directed attention  to Section  2 and  offered his                                                               
belief  that  this  is  an   excellent  approach.  He  asked  for                                                               
clarification  on the  effect of  leaving  the language  "contact                                                               
with semen"  in the harassment statute  as well as in  Section 2.                                                               
He recalled  an attorney  had used the  phrase, the  principle of                                                               
leniency  or the  precept of  leniency. He  would like  to ensure                                                               
that the prosecutor would have  to charge non-consensual "contact                                                               
with semen"  as harassment rather  than charge the  offender with                                                               
the appropriate sex  crime, such as the offense  in the Schneider                                                               
case.                                                                                                                           
                                                                                                                                
MR. WHITT deferred to Mr.  Skidmore, Department of Law to address                                                               
that specific issue in his testimony.                                                                                           
                                                                                                                                
1:38:41 PM                                                                                                                    
SENATOR KIEHL referred  to Section 3 of SSSB 12  and the topic of                                                               
not allowing  credit for time spent  under electronic monitoring.                                                               
He asked whether the subsection  [AS 12.55.027(d)] being repealed                                                               
and reenacted  was specific  to sex  offenses or  if it  was more                                                               
broadly applied.                                                                                                                
                                                                                                                                
MR. WHITT  related his  understanding that  this would  take away                                                               
any credits  for electronic monitoring during  the pretrial phase                                                               
regardless of the crime; however,  he deferred to Mr. Skidmore to                                                               
further address this subsection during his testimony.                                                                           
                                                                                                                                
CHAIR HUGHES asked Mr. Skidmore to be prepared to address this.                                                                 
                                                                                                                                
MR. WHITT turned to Section 5  of the sectional analysis for SSSB                                                               
12  and asked  Ms.  Largent  to cover  any  questions related  to                                                               
Sections 5-8 of the bill.                                                                                                       
                                                                                                                                
     Section 5:  Amends AS 12.55.125(c)  to add  an enhanced                                                                    
     sentencing structure  for assault  in the  first degree                                                                    
     when  a dangerous  instrument is  used in  the assault.                                                                    
     (Page 3, line 8  Page 4, line 4)                                                                                           
                                                                                                                                
1:39:57 PM                                                                                                                    
REGINA  LARGENT,  Staff,  Senator Shelley  Hughes,  Alaska  State                                                               
Legislature, Juneau, on  behalf of the sponsor of SSSB  12,  said                                                               
that Section 5  relates to an existing  sentencing enhancement in                                                               
AS 12.55.125(c)(1)-(2) for  crimes such as sexual  assault in the                                                               
first degree, unlawful exploitation  of a minor, and unclassified                                                               
and   Class  A   felonies.   Currently,   an  existing   sentence                                                               
enhancement  exists   for  a  first   felony  when   a  dangerous                                                               
instrument is used.  She referred to AS 12.55.125(c),  which is a                                                               
subsection  of dangerous  instruments statutes.  She referred  to                                                               
the definition under [AS  11.81.900](b)(15)(B), which states that                                                               
a dangerous instrument  means, "hands or other  objects when used                                                               
to impede  normal breathing or  circulation of blood  by applying                                                               
pressure on  the throat or  neck or  obstructing the nose  or the                                                               
mouth." She  returned to  Sections 5,  6, and  7, which  apply to                                                               
assault in  the first degree,  assault in the second  degree, and                                                               
assault in the third degree:                                                                                                    
                                                                                                                                
     Section 5:  Amends AS 12.55.125(c)  to add  an enhanced                                                                    
     sentencing structure  for assault  in the  first degree                                                                    
     when  a dangerous  instrument is  used in  the assault.                                                                    
     (Page 3, line 8  Page 4, line 4)                                                                                           
                                                                                                                                
     Section 6:  Amends AS 12.55.125(d)  to add  an enhanced                                                                    
     sentencing structure  for assault in the  second degree                                                                    
     when  a dangerous  instrument is  used in  the assault.                                                                    
     (Page 4, line 5  Page 4, line 29)                                                                                          
                                                                                                                                
     Section 7:  Amends AS 12.55.125(e)  to add  an enhanced                                                                    
     sentencing structure  for assault  in the  third degree                                                                    
     when  a dangerous  instrument is  used in  the assault.                                                                    
     (Page 4, line 30  Page 5, line 23)                                                                                         
                                                                                                                                
MS.  LARGENT explained  that when  an  object is  used to  impede                                                               
normal  breathing or  circulation  under  these subsections,  the                                                               
offender  would be  subject to  enhanced  sentencing. This  would                                                               
have a cascading effect in  recognition of the seriousness of the                                                               
crime.  She  said  that  in  some  jurisdictions  this  could  be                                                               
considered attempted  murder since death  can easily occur  or it                                                               
places  a person  in fear  of death.  She recalled  from previous                                                               
testimony  that  most strangulations  in  Alaska  are charged  as                                                               
assault   in   the  second   degree;   however,   the  crime   of                                                               
strangulation  is a  more serious  and  potentially deadly  crime                                                               
than assault.                                                                                                                   
                                                                                                                                
1:42:52 PM                                                                                                                    
MS. LARGENT continued.                                                                                                          
                                                                                                                                
     Section  8: Amends  AS  12.55.125(i)  to add  increased                                                                    
     presumptive ranges  to second- and  third-degree sexual                                                                    
     crimes  when   in  the  commission  of   the  crime,  a                                                                    
     defendant  possessed   a  firearm,  used   a  dangerous                                                                    
     instrument or caused serious  physical injury. (Page 5,                                                                    
     line 24  Page 8, line 22)                                                                                                  
                                                                                                                                
She explained  that this  takes the current  statute for  a first                                                               
felony that  includes use  of a  dangerous instrument  to enhance                                                               
the sentence in a consistent  manner creating cascading sentences                                                               
down  to  AS  12.55.125(i(3)&(4).  This  would  apply  to  sexual                                                               
assault in  the first degree,  unlawful exploitation of  a minor,                                                               
online enticement  of a  minor, and  attempted and  conspiracy or                                                               
solicitation  of  sexual assault  in  the  first degree,  or  sex                                                               
trafficking in the first degree.                                                                                                
                                                                                                                                
She  noted  that this  would  not  apply  to  a few  crimes,  for                                                               
example,  distribution  of pornography,  since  use  of a  deadly                                                               
instrument  would not  apply. She  said this  would apply  to the                                                               
first  felony that  includes  use of  a  dangerous instrument  to                                                               
enhance  the presumptive  sentencing  in  [paragraph] (3),  which                                                               
includes sexual assault  in the second degree, sexual  abuse of a                                                               
minor  in   the  second  degree,  online   enticement  and  under                                                               
[paragraph] (4),  attempt, conspiracy, or solicitation  of sexual                                                               
assault in the  second degree, second degree sexual  assault of a                                                               
minor, or unlawful  exploitation of a minor,  incest, or indecent                                                               
exposure in the first degree.                                                                                                   
                                                                                                                                
1:44:58 PM                                                                                                                    
CHAIR HUGHES asked  for further clarification on  the first three                                                               
sections  that  did not  apply  to  sexual  crimes but  would  be                                                               
subject  to enhanced  sentences.  She asked  whether Ms.  Largent                                                               
would give the committee information  on the number of years that                                                               
would be  added under  the enhanced  sentencing. She  stated that                                                               
this would give members and  the public a better understanding of                                                               
how adding the subset of  strangulation would impact the sentence                                                               
and the amount of time an offender would serve.                                                                                 
                                                                                                                                
MS.  LARGENT  related  her  understanding   that  the  Chair  was                                                               
interested first in enhanced sentencing  for assault and then for                                                               
sexual  assault. She  stated that  the current  sentencing for  a                                                               
first offense  of assault in  the first degree [AS  11.41.200], a                                                               
class  A felony,  is three  to  six years.  This provision  would                                                               
increase the  presumptive range  to five to  seven years  for the                                                               
first offense.                                                                                                                  
                                                                                                                                
She stated  that the current  presumptive sentence range  for the                                                               
first offense  of assault  in the  second degree  [AS 11.41.210],                                                               
which is a class B felony, is  zero to two years. She pointed out                                                               
that  Justin Schneider  was convicted  of assault  in the  second                                                               
degree. This bill would increase  the presumptive range to one to                                                               
three years.                                                                                                                    
                                                                                                                                
MS.  LARGENT stated  the current  presumptive sentence  range for                                                               
assault in the  third degree, which is a class  C felony, is zero                                                               
to two years and this would change that to one to three years.                                                                  
                                                                                                                                
1:46:48 PM                                                                                                                    
CHAIR  HUGHES  asked  for  the  penalties  for  an  offender  who                                                               
committed a second  and third felony in each  of those categories                                                               
since  she understood  the presumptive  sentences  would also  be                                                               
increased.                                                                                                                      
                                                                                                                                
MS.  LARGENT  answered  yes.  The  second  felony  conviction  of                                                               
assault in the first degree [AS  11.41.200], a class A felony, is                                                               
currently eight  to 12  years; it  would increase  to nine  to 13                                                               
years. A  third felony  conviction is  currently 13-20  years; it                                                               
would increase to 14-20 years.                                                                                                  
                                                                                                                                
She related  that a second  felony conviction for assault  in the                                                               
second degree [AS 11.41.210], a  class B felony, is currently two                                                               
to five years and that would  increase to four to six years under                                                               
the bill.  The third felony  conviction for  a class C  felony is                                                               
currently four to 10 years, and  it would increase to seven to 10                                                               
years under the bill.                                                                                                           
                                                                                                                                
She related that a second felony  for assault in the third degree                                                               
[AS  11.41.220], which  is class  C felony,  is currently  one to                                                               
four  years and  would be  increased to  two to  five years.  The                                                               
current range for a third felony  conviction is two to five years                                                               
and would be increased to three to five years.                                                                                  
                                                                                                                                
1:48:34 PM                                                                                                                    
CHAIR HUGHES asked  her to review the  presumptive sentencing for                                                               
sexual assault.                                                                                                                 
                                                                                                                                
MS.  LARGENT referred  again to  Section  8 and  stated that  the                                                               
current  presumptive  sentence  range under  AS  12.55.125(i)(3),                                                               
which  includes  sexual  assault  in the  second  degree,  sexual                                                               
[abuse] of  a minor in  the second degree, and  online enticement                                                               
of a  minor is  five to  15 years. This  would increase  to 10-25                                                               
years under  CSSSSB 12, Version  O. She clarified that  refers to                                                               
those sex crimes that included  the use of a dangerous instrument                                                               
or serious injury. In response  to Chair Hughes, she acknowledged                                                               
that  a dangerous  instrument  does  include strangulation.  This                                                               
would close  a gap by  applying this to assault,  sexual assault,                                                               
and strangulation to the point of unconsciousness.                                                                              
                                                                                                                                
1:50:17 PM                                                                                                                    
MS. LARGENT related the  presumptive sentencing under [paragraph]                                                               
(4), which  applies to  the crimes of  attempt, conspiracy,  or a                                                               
solicitation  to  commit sexual  assault  in  the second  degree,                                                               
sexual  abuse  of   a  minor  in  the   second  degree,  unlawful                                                               
exploitation of a  minor, incest, indecent exposure  in the first                                                               
degree,  currently  is two  to  12  years.  Under the  bill,  the                                                               
presumptive range would be increased from to seven to 12 years.                                                                 
                                                                                                                                
1:50:50 PM                                                                                                                    
MR. WHITT reviewed Section 9 of the sectional analysis.                                                                         
                                                                                                                                
     Section 9: Adds AS  12.61.015(d), a new subsection that                                                                    
     requires the prosecuting attorney  to make a reasonable                                                                    
     effort to  confer with  the victim  of a  sexual felony                                                                    
     (or their  legal guardian) to  ascertain if  they agree                                                                    
     with  the proposed  plea agreement.  The victim  is not                                                                    
     required to  respond; however, a record  is required of                                                                    
     the  consultation. A  prosecutor  in not  bound by  the                                                                    
     agreement   or  disagreement   to  the   proposed  plea                                                                    
     agreement (Page 8, lines 23  30)                                                                                           
                                                                                                                                
He said that this change was suggested by the sponsor.                                                                          
                                                                                                                                
1:51:57 PM                                                                                                                    
SENATOR KIEHL  asked how this  would change the  current practice                                                               
of consultation with victims.                                                                                                   
                                                                                                                                
CHAIR HUGHES related  that Mr. Skidmore, Department  of Law would                                                               
address this.                                                                                                                   
                                                                                                                                
1:52:20 PM                                                                                                                    
MR. WHITT turned to Section 10 of the sectional analysis.                                                                       
                                                                                                                                
     Section 10: Repeals AS  12.55.027(g), which conforms to                                                                    
     section 3 to  end sentencing credits for  time spent on                                                                    
     electronic monitoring.                                                                                                     
                                                                                                                                
He explained  that this  section is  specific to  pretrial credit                                                               
for time served  limited to felony crimes against  a person under                                                               
AS  11.41, domestic  violence crimes,  sex offenses,  delivery of                                                               
controlled substances to  a minor, burglary in  the first degree,                                                               
and arson  in the first degree.  Current law allows the  court to                                                               
grant up  to 360  days of  credit for  an offender  on electronic                                                               
monitoring who  has been  charged with  those crimes.  This would                                                               
repeal  that section  and  remove all  pretrial  credit for  time                                                               
served on electronic monitoring, he said.                                                                                       
                                                                                                                                
1:53:41 PM                                                                                                                    
MR. WHITT continued.                                                                                                            
                                                                                                                                
     Section 11: Applicability. (Page 9, line 1  10)                                                                            
                                                                                                                                
     Section [12]: Effective date clause. (Page 9, line 11)                                                                     
                                                                                                                                
He suggested the bill sponsor may wish to address Section 9.                                                                    
                                                                                                                                
1:54:14 PM                                                                                                                    
SENATOR  MICCICHE said  that current  law contains  a requirement                                                               
for consultation,  but a gap  currently exists for  recording and                                                               
documenting the consultation and  whether the victim supports the                                                               
plea agreement.  He suggested that  under this language  a better                                                               
outcome may have occurred [in the Justin Schneider case].                                                                       
                                                                                                                                
He was  under the  assumption that  it would  be difficult  for a                                                               
victim to  agree to  a plea bargain.  However, in  sexual assault                                                               
cases, many  victims do not  want to relive their  experiences in                                                               
the courtroom and often will support  the plea agreement. It is a                                                               
much simpler process and would  not require their presence in the                                                               
courtroom, he  said.   He offered  his belief  that his  bill may                                                               
drive more discussions and consultations,  but he was unsure that                                                               
it will result in much of  a change from the current practice. He                                                               
said that sometimes  the plea agreement is the best  that one can                                                               
get,  which  may  be  best  for the  victim.  The  goal  of  this                                                               
legislation is to do what is best for the victim.                                                                               
                                                                                                                                
CHAIR  HUGHES  said  some  victims  do not  want  to  relive  the                                                               
experience and  the victims  may not respond  or they  may decide                                                               
not to  appear in  court. However,  if the  victims are  asked to                                                               
review the plea  bargain, they may be more apt  to review it, and                                                               
in doing so, the victims may  decide to become more involved. She                                                               
thought that aspect was important to bring appropriate justice.                                                                 
                                                                                                                                
1:56:47 PM                                                                                                                    
SENATOR  KIEHL  said  he  likes  the  goal  but  just  wanted  to                                                               
understand how  it will  work in  the district  attorney's office                                                               
and in the courtroom.                                                                                                           
                                                                                                                                
1:57:13 PM                                                                                                                    
JOHN  SKIDMORE,  Division  Director, Criminal  Division,  Central                                                               
Office, Department  of Law, Anchorage, explained  how this change                                                               
in  the  law  would  impact the  criminal  division's  practices.                                                               
Currently,  the   department  consults  with  victims   when  the                                                               
department can contact them. Further,  the department's policy is                                                               
to record all  contacts in the file, but this  would require them                                                               
to  do  so.   He  characterized  this  provision   as  the  "gold                                                               
standard," which  is something the  department would  support, he                                                               
said.                                                                                                                           
                                                                                                                                
1:58:10 PM                                                                                                                    
SENATOR KIEHL  asked what the  language "shall make  a reasonable                                                               
effort" means  in practice  and whether  the department  would be                                                               
concerned about  losing cases  if a  court said  it did  not make                                                               
sufficient effort.                                                                                                              
                                                                                                                                
MR. SKIDMORE said  he was not concerned about  that. He explained                                                               
that  the  courts  are  adept   in  interpreting  this  term.  He                                                               
interpreted  this  to mean  that  the  department should  contact                                                               
victims if contact information is  available. The department will                                                               
often go beyond those methods and  in some instances will use law                                                               
enforcement to contact  victims. Thus far the  department has not                                                               
encountered any issues with the term "reasonable."                                                                              
                                                                                                                                
CHAIR HUGHES  asked for  further clarification  at what  point in                                                               
the process  does the prosecutor reach  out to the victim  and if                                                               
it is  initially when the  case begins or  if it would  be during                                                               
the plea bargain process.                                                                                                       
                                                                                                                                
MR.  SKIDMORE answered  that the  department contacts  victims at                                                               
various times throughout  the process, when a  case is initiated,                                                               
often prior  to arraignment, and  during plea  changes, depending                                                               
on  the  degree that  victims  have  indicated  they want  to  be                                                               
involved.  He acknowledged  that the  department is  not perfect,                                                               
but its goal is to reach  out to victims prior to plea agreements                                                               
being  reached. The  department  also has  obligations to  inform                                                               
victims of hearings and to ensure  that if they wish to appear in                                                               
any sentencing  hearing to  provide them  with an  opportunity to                                                               
participate.                                                                                                                    
                                                                                                                                
2:01:07 PM                                                                                                                    
CHAIR HUGHES recapped that the  DOL's current general practice is                                                               
that it  reaches out to  victims on multiple times,  including at                                                               
the point of  a plea bargain agreement being reached,  but it may                                                               
not  be  perfect. She  asked  whether  putting this  language  in                                                               
statute will mean it will  be done more consistently, even though                                                               
it may not always be possible to reach them.                                                                                    
                                                                                                                                
MR. SKIDMORE said that placing  the language in statute certainly                                                               
provides  added  incentive  since  the department  will  want  to                                                               
comply with the law.                                                                                                            
                                                                                                                                
CHAIR HUGHES said her goal is that it will be done consistently.                                                                
                                                                                                                                
2:02:11 PM                                                                                                                    
SENATOR KIEHL  referred to the  question of including  "semen" in                                                               
the definition of  sexual contact and leaving it in  the crime of                                                               
harassment to ensure  that the DOL will have the  tools to charge                                                               
crimes, such  as the Justin  Schneider case,  as a sex  crime and                                                               
not be  bound by  the principle  of leniency  to charge  a lesser                                                               
crime because it contains the same basic element.                                                                               
                                                                                                                                
MR. SKIDMORE said the Department  of Law (DOL) had those concerns                                                               
initially when  drafting legislation.  However, the  DOL believes                                                               
that different elements  will allow that distinction  to be made.                                                               
When  considering  a  sexual  assault  case,  the  term  "without                                                               
consent" is  a term  that many people  may use  in conversations,                                                               
but it  is different when  used in statute  and law. In  law, the                                                               
concept requires "the use of  coercion and force." He related the                                                               
distinction, such  that an  inmate who flings  bodily fluid  at a                                                               
correctional officer does  not do so through  coercion and force.                                                               
However,  that  situation  is  very  different  from  the  Justin                                                               
Schneider case, in which coercion and force was used.                                                                           
                                                                                                                                
2:04:34 PM                                                                                                                    
SENATOR  KIEHL  turned  to  pretrial credit  for  time  spent  on                                                               
electronic  monitoring.  He said  he  was  not generally  of  the                                                               
opinion that sex  offenders should be out pretrial.  He asked for                                                               
further clarification  on electronic monitoring. For  example, he                                                               
acknowledged  that  the  legislature   wants  offenders  with  an                                                               
addiction problem to  be in treatment programs.  He asked whether                                                               
the incentive structure is being changed to make Alaskan safer.                                                                 
                                                                                                                                
CHAIR   HUGHES   asked  Mr.   Skidmore   to   also  discuss   the                                                               
administration's reason to put it in [one] of the crime bills.                                                                  
                                                                                                                                
2:05:55 PM                                                                                                                    
MR.  SKIDMORE  answered  that   electronic  monitoring  was  also                                                               
addressed  in  SB 33.  He  referred  to  page  2, Section  3,  AS                                                               
12.55.127(d), of  SSSB12, which relates to  electronic monitoring                                                               
in a  private residence;  however, it does  not relate  to credit                                                               
for  being  in  a  treatment program.  He  emphasized  that  this                                                               
provision  would not  change the  ability for  someone to  obtain                                                               
credit while  in a treatment program.  He said that if  this bill                                                               
were  to pass,  a  person  would still  receive  credit during  a                                                               
treatment  program.  The  reason that  electronic  monitoring  is                                                               
problematic  is two-fold.  First, when  someone is  sentenced for                                                               
committing a crime, the person  is committed to the Department of                                                               
Corrections  and  the  department   conducts  a  risk  assessment                                                               
analysis to determine how to  classify the offender. For example,                                                               
the department will  assess on a case by case  basis, whether the                                                               
offender  needs to  be in  minimum or  maximum security,  and the                                                               
person's  classification   based  on   any  offense   the  person                                                               
committed,  among  other  factors.  This is  different  than  the                                                               
decision  on whether  a person  should be  released pretrial.  He                                                               
emphasized  the difference  is that  in one  case, pretrial,  the                                                               
person is  presumed innocent, but  once the person  is convicted,                                                               
the presumption of  innocence no longer applies  since the person                                                               
has  been found  guilty. The  pretrial assessment  only evaluates                                                               
whether the person is a flight risk  or if the person is a danger                                                               
to  the  community. The  classification  that  the Department  of                                                               
Corrections (DOC)  uses is  far more  complex when  it determines                                                               
how to  house offenders. He deferred  to the DOC to  provide more                                                               
details. He said the determinations are very different.                                                                         
                                                                                                                                
2:09:02 PM                                                                                                                    
MR.  SKIDMORE   said  the  pretrial  population   in  prison  has                                                               
increased  significantly over  the years.  He recalled  that when                                                               
Senate Bill  91 was passed the  figure was about 81  percent over                                                               
ten years.  The pretrial population  is determined by  the length                                                               
of time a person is in  a DOC facility awaiting the determination                                                               
of the  case, whether it  is done by plea  or by trial.  It seems                                                               
that  an  81  percent  statistical  increase  must  mean  that  a                                                               
significant  number of  people are  being  admitted. However,  he                                                               
cautioned that the 81 percent  increase is not just vertical, but                                                               
also  horizontal, since  these figures  also include  increase in                                                               
the  timeframe  from  arraignment  until the  case  is  resolved.                                                               
Speaking  from his  20  years  of experience,  he  said that  the                                                               
increase in pretrial delay  contributes significantly to problems                                                               
in managing the prison population.                                                                                              
                                                                                                                                
He  offered  to connect  this  to  the  bill. When  offenders  in                                                               
pretrial  status  can  obtain  credit   for  time  on  electronic                                                               
monitoring,  it provides  an incentive  to delay  resolving their                                                               
cases.  The longer  defendants can  delay their  cases, the  less                                                               
time they will serve if  convicted, he said. This statute removes                                                               
the determination  by the DOC  and puts offenders in  jail, based                                                               
on their pretrial risk.                                                                                                         
                                                                                                                                
MR. SKIDMORE  emphasized that these concepts  are different ones.                                                               
He offered his belief that  delays always favor the defendant and                                                               
never the  victims. Victims who  go to  court must take  time off                                                               
from work  or school  and rearrange their  lives to  attend court                                                               
proceedings, only  to see  the case has  been delayed,  which can                                                               
happen  repeatedly. This  provision  removes  that incentive  for                                                               
pretrial  delays. The  same  scenario he  just  described is  not                                                               
limited to sex  offenses, but also applies  to property offenses,                                                               
including vehicle theft, physical assault, or burglaries.                                                                       
                                                                                                                                
2:13:01 PM                                                                                                                    
SENATOR KIEHL  asked for clarification that  after sentencing the                                                               
DOC determines  who goes  to jail, since  he thought  judges make                                                               
that decision.                                                                                                                  
                                                                                                                                
MR. SKIDMORE agreed. He clarified  that the DOC determines how to                                                               
classify  someone  and  where  they   serve  their  sentence.  He                                                               
explained  that  the legislature  passed  a  statute that  allows                                                               
certain people to  be released on electronic  monitoring to serve                                                               
their  sentences. He  said a  series of  factors exist,  which is                                                               
different than  pretrial. He asked  whether it is it  possible to                                                               
serve a sentence on electronic  monitoring and said the answer is                                                               
yes,  but  the judge  determines  the  length  of time.  The  DOC                                                               
ultimately  decides  if  the  person  is  a  good  candidate  for                                                               
electronic monitoring.                                                                                                          
                                                                                                                                
2:14:11 PM                                                                                                                    
SENATOR SHOWER asked  if pretrial delays should  be considered in                                                               
SB 33.                                                                                                                          
                                                                                                                                
MR. SKIDMORE responded that the concept  in SB 12 is the same one                                                               
that is found  in SB 33. He  was unsure which bill  will pass but                                                               
having the provision in both bills would be helpful.                                                                            
                                                                                                                                
2:15:25 PM                                                                                                                    
SENATOR MICCICHE said  that Senator Kiehl framed  his question on                                                               
substance abuse. He  said that this bill would  return first time                                                               
drug possession to  a felony. He asked  for further clarification                                                               
on  the benefits  of suspended  imposition of  sentence (SIS)  to                                                               
complete their  treatment outside  the facility. He  suggested it                                                               
would  tend to  serve the  same purpose  in a  treatment plan  to                                                               
provide credit for time served on electronic monitoring.                                                                        
                                                                                                                                
MR.  SKIDMORE  said those  are  two  different concepts,  but  he                                                               
agreed  both  achieve the  same  goal.  He  said a  provision  in                                                               
statute, in  AS 12.55.127, authorizes credit  against an ultimate                                                               
sentence  that  is  imposed  for  time  spent  in  a  residential                                                               
treatment  program.  In  addition,   one  of  the  tools  Senator                                                               
Micciche just mentioned  is an SEJ, suspended  entry of judgment.                                                               
He explained that  an SEJ allows the prosecution  and the defense                                                               
to agree  that a defendant  should complete a set  of conditions,                                                               
similar to probation. The defendant  who completes the conditions                                                               
can avoid  a conviction  on the person's  record. For  example, a                                                               
person who  has an  addiction and is  charged with  possession of                                                               
drugs would  be charged. However,  the case could be  resolved if                                                               
the person  agreed to  treatment for  six months  or more  than a                                                               
year.  The  statute  does  not   limit  the  prosecution  or  the                                                               
defense's ability to  decide on the length of  treatment. The one                                                               
in statute would  be court ordered. Ultimately, if  the client is                                                               
convicted, the time spent in  a residential treatment program can                                                               
be  credited towards  the person's  sentence.  This is  different                                                               
than a  SEJ since it lacks  a conviction since a  sentence is not                                                               
imposed. The third concept is  a suspended imposition of sentence                                                               
or an  SIS, which would  apply to  someone who is  convicted, but                                                               
the sentence  is suspended while  the person is on  probation. If                                                               
the  person  meets the  conditions,  the  sentence would  be  set                                                               
aside,  and the  person would  not serve  jail time.  He recapped                                                               
that under  an SIS a  person who  is convicted must  meet certain                                                               
conditions, and  if so, would  not go to  jail. Under an  SEJ the                                                               
conviction is never  entered. The third way to  reduce a sentence                                                               
is to go to a residential treatment program pretrial.                                                                           
                                                                                                                                
2:19:28 PM                                                                                                                    
CHAIR HUGHES  declared a  conflict of  interest because  a family                                                               
member   has  a   relationship  to   the  therapeutic   court  in                                                               
prescribing certain medication.                                                                                                 
                                                                                                                                
MR.  SKIDMORE   agreed  a  fourth   option  exists   for  someone                                                               
struggling  with addiction.  Several  therapeutic court  programs                                                               
exist in  Alaska. The idea is  to find individuals who  enter the                                                               
criminal justice system because  of substance abuse problems. The                                                               
court  monitors  them,  instead   of  a  probation  officer.  The                                                               
offender  would sign  agreements and  if the  person successfully                                                               
completes the requirements,  it results in a  reduced sentence or                                                               
avoiding  conviction.   He  said   the  difference   between  the                                                               
therapeutic court  and the SEJ  is that the therapeutic  court is                                                               
monitored  and managed  by a  judge and  an SEJ  is an  agreement                                                               
between two  parties. These are  all options within  the criminal                                                               
justice system that work towards the same goal.                                                                                 
                                                                                                                                
2:21:10 PM                                                                                                                    
CHAIR HUGHES asked  whether a person can be  ordered to treatment                                                               
and be on electronic monitoring.                                                                                                
                                                                                                                                
MR. SKIDMORE said  he has not encountered it, but  he was unsure.                                                               
He said one statute says an  offender cannot get credit for being                                                               
on electronic monitoring, but another  one states that the person                                                               
is entitled to credit for  attending a treatment program. He said                                                               
that  a  court  may  not  grant  credit  against  a  sentence  of                                                               
imprisonment  for  time  spent  in  a  private  residence  or  on                                                               
electronic monitoring. The  person would not get  credit for time                                                               
spent on electronic  monitoring but would be  eligible for credit                                                               
for  time spent  in a  treatment program.  He offered  his belief                                                               
that this  statute would not  interfere in that  circumstance and                                                               
should not have an impact.                                                                                                      
                                                                                                                                
CHAIR HUGHES said that if necessary,  it could be addressed in SB                                                               
33.                                                                                                                             
                                                                                                                                
2:22:40 PM                                                                                                                    
SENATOR KIEHL  wanted to  think about how  it would  affect those                                                               
with  mental  health  problems.   He  acknowledged  the  role  of                                                               
providing incentives. He expressed concern  about the risk of re-                                                               
offense. He related a scenario  in which someone is on electronic                                                               
monitoring on  medication. He asked for  further clarification on                                                               
the  public  safety benefit  to  imprison  someone who  goes  off                                                               
medication  and commits  a crime  of threatening  someone with  a                                                               
pool  cue, since  it  removes  them from  all  the predictors  of                                                               
success.                                                                                                                        
                                                                                                                                
MR. SKIDMORE  said the  mistake is  the presumption  that someone                                                               
goes to prison.  He said that in the  circumstance described, the                                                               
judges would have  discretion. He said that it  is important that                                                               
law enforcement,  prosecutors, judges,  and probation  and parole                                                               
officers all  have discretion. He  said a wide range  of offenses                                                               
exists,  and  within that  range,  a  wide range  of  individuals                                                               
commit  the offenses.  He agreed  that Senator  Kiehl laid  out a                                                               
circumstance in  which the person should  not go to prison  or if                                                               
so,  just for  a short  period  of time.  The DOC  still has  the                                                               
ability  to conduct  classifications to  determine if  the person                                                               
really needs to be in a  "hard bed" or should serve the remaining                                                               
sentence on  electronic monitoring.  He personally has  seen lots                                                               
of  cases  with  people  being  placed  on  probation  or  having                                                               
suspended  sentences. He  acknowledged  some people  would go  to                                                               
prison.                                                                                                                         
                                                                                                                                
2:26:03 PM                                                                                                                    
SENATOR  KIEHL  pointed  out  that  Section 7  would  make  it  a                                                               
presumptive sentence of  one to three years under  assault in the                                                               
third degree with a dangerous instrument.                                                                                       
                                                                                                                                
MR. SKIDMORE  said that  in his hypothetical  he mentions  a pool                                                               
cue.  He  referred to  page  5  to  Section  7, which  defines  a                                                               
dangerous  instrument in  11.81.900(b)(15)(B),  which relates  to                                                               
strangulation using  hands or other  objects. He said the  one to                                                               
three years  would not  apply in  that circumstance.  However, if                                                               
the  pool cue  was used  to strangle  someone, the  one to  three                                                               
years is a presumptive term, which  does not mean the court would                                                               
need to  impose one to three  years. He said there  are statutory                                                               
mitigators that could  be applied that would allow a  court to go                                                               
below the one  year. The person has options that  could keep them                                                               
out of jail, he said.                                                                                                           
                                                                                                                                
2:27:35 PM                                                                                                                    
CHAIR HUGHES  asked for further clarification  on whether someone                                                               
in prison could be on medication.                                                                                               
                                                                                                                                
JENNFER WINKELMAN,  Director, Division  of Probation  and Parole,                                                               
Department of Corrections, Juneau, answered that is correct.                                                                    
                                                                                                                                
CHAIR  HUGHES   recalled  that  the  Department   of  Corrections                                                               
commissioner related that  in the goal to  reduce recidivism. For                                                               
those not  on an ankle monitor  but in the prison  system that it                                                               
might deter  the things that  would help that person.  The person                                                               
might  be more  apt  to  become a  habitual  offender and  repeat                                                               
crimes upon exiting  prison. She asked whether  she would briefly                                                               
discuss  ways  the   DOC  will  change  things   to  help  ensure                                                               
recidivism goals are met, and  the person can become a productive                                                               
citizen.                                                                                                                        
                                                                                                                                
MS.  WINKELMAN said  that within  the institution,  the DOC  will                                                               
place  the offender  in  the least  restrictive  housing that  is                                                               
necessary. She said the risk  assessment will determine where the                                                               
person will  be placed. Once  the person  is out on  probation or                                                               
parole  the DOC's  mission, by  statute, is  to do  everything to                                                               
work  towards   rehabilitation.  She   said  that  this   can  be                                                               
accomplished by  giving the department  the discretion  to assess                                                               
each  person's needs  for placement  in the  facility and  how to                                                               
work with them when they are out on the street.                                                                                 
                                                                                                                                
CHAIR HUGHES said  SB 34 will be before the  committee next week.                                                               
She expressed  an interest  in having  the department  inform the                                                               
Senate Judiciary Standing Committee on  how it will be different.                                                               
She agreed that Senator Kiehl is  correct that those in jail were                                                               
more apt to recommit crimes and  how these bills will change that                                                               
paradigm. She  wanted the record to  reflect that the goal  is to                                                               
have people exiting  the criminal justice system  in better shape                                                               
to help ensure safety in our communities.                                                                                       
                                                                                                                                
2:31:27 PM                                                                                                                    
CHAIR  HUGHES turned  to Section  9. She  said over  7,000 sexual                                                               
offenses happen  each year.  She asked  whether victims  who felt                                                               
uncomfortable attending  sentencing would be able  to provide the                                                               
feedback without appearing at the proceeding.                                                                                   
                                                                                                                                
MR. SKIDMORE answered  yes. He said that multiple  ways exist for                                                               
a  victim  to  provide  information.  First,  victims  can  avail                                                               
themselves to the Office of Victim's  Rights, which is a group of                                                               
attorneys  who  help  victims understand  the  system  and  their                                                               
rights. He  said that  the organization can  appear and  speak on                                                               
behalf of the victim. Secondly, any  victim can write a letter to                                                               
the judge.  A third  option is  that the victim  can talk  to the                                                               
Department of Law,  who can speak on behalf of  the victim at the                                                               
sentencing. He said  that the DOL is clear to  identify when they                                                               
are speaking on  behalf of a victim rather than  as a prosecutor.                                                               
Finally,  the   victim  could   participate  in   the  proceeding                                                               
telephonically, he said.                                                                                                        
                                                                                                                                
2:34:03 PM                                                                                                                    
SENATOR KIEHL referred to Section  1, adding dangerous instrument                                                               
to the  definition of strangulation.  He asked  whether forearms,                                                               
knees, or other parts of body are covered in the definition.                                                                    
                                                                                                                                
MR. SKIDMORE agreed that those are covered.                                                                                     
                                                                                                                                
2:35:05 PM                                                                                                                    
CHAIR HUGHES removed  her objection. She said  that the committee                                                               
substitute, work  order 31-LS0263\O, Version O,  has been adopted                                                               
as the working document.                                                                                                        
                                                                                                                                
[SB 12 was held in committee.]                                                                                                  
                                                                                                                                
2:35:43 PM                                                                                                                    
CHAIR HUGHES reviewed upcoming committee announcements.                                                                         
                                                                                                                                
2:35:48 PM                                                                                                                    
There being  no further  business to  come before  the committee,                                                               
Chair Hughes  adjourned the  Senate Judiciary  Standing Committee                                                               
meeting at 2:35 p.m.                                                                                                            

Document Name Date/Time Subjects
SJUD Agenda 3.1.19.pdf SJUD 3/1/2019 1:30:00 PM
CSSSSB12 Version O.pdf SJUD 3/1/2019 1:30:00 PM
SB 12
CSSSSB12 Explanation of Changes from Version U to O.pdf SJUD 3/1/2019 1:30:00 PM
SB 12
CSSSSB 12 Sectional Summary Version O.pdf SJUD 3/1/2019 1:30:00 PM
SB 12